by Interstride
This blog post was co-authored by Aaron Blumberg, Partner & Attorney at Fragomen.
J-1 visas are a common option for international students in the US, but they sometimes require you to return to your home country for two years following the conclusion of the J-1 program before you can obtain an H or L visa or a U.S. green card. If you want to stay in the US, there are several J-1 waiver options that you can apply for. This guide will help you understand each of the options and choose the one that’s best for you.
The basics of J-1 visas
J-1 visas allow aspiring university students from other countries to study in the US for the length of their degree program. J-1 visas can also be used for internships, research, STEM initiatives, and more. Learn more about the different J-1 visa programs from the US Department of State.
Two-year home-country physical presence requirement
The biggest downside of the J-1 visa is the two-year foreign residence requirement or 212(e).
This rule requires certain J-1 visa holders to return home for two years after their J-1 program ends before they can get an H or L visa or a green card. Home country is defined as the student’s last country of residence.
The two years of the physical presence requirement do not need to be continuous. This means, for example, you can return for one year, come back to the US for a year, and then return to your home country for another year. You can even satisfy this requirement by applying for a different type of visa and returning to your home country part-time such as for holidays or summers as long as it eventually adds up to two years after your J-1 program ends.
The two-year rule may be disappointing to hear about, but it’s better to know about this requirement sooner rather than later so that you can plan accordingly. There is some good news though. You may still be eligible for several different types of visas if you have not completed the two-year requirement yet. They are:
- F-1
- O-1
- TN
- E-3
- another J-1
- an extension of the current J-1
Who is subject to the two-year rule?
Certain J-1 visa holders who have received government funding from their home country or from the US are subject to the two-year rule. Post-baccalaureate medical students including those completing residency or a fellowship are also subject.
Other J-1 visa holders are subject to the requirement because of their subject or field code. To figure out if this applies to you, check to see if your country of permanent residence is on the 2009 Skills List. If it is, you need to check the list for that specific country to see if the skills code on your DS-2019 is on the skills list.
Fragomen’s immigration experts recommend conducting your own analysis to determine if you are subject to the two-year requirement. Don’t just base it on your visa forms or what other international students have told you because the rules differ depending on your home country, J-1 program, and other circumstances. If you are still unsure, you can request a free Advisory Opinion from the US government or contact Fragomen for a consultation.
J-1 waiver options
While the two-year rule is required for some J-1 visa holders, there are ways to waive this requirement. There are five different J-1 waiver options. The one that’s best for you will depend on your specific circumstances.
- No Objection Waiver
- IGA (Interested Government Agency)
- Persecution
- Exceptional Hardship to a US citizen or LPR spouse/child
- Conrad 30
No objection waiver
This is the easiest option, so international students may want to check to see if they can get this waiver first before looking into the other options. You request that your home country embassy send an official No Objection Statement saying that they do not object to waiving the two-year requirement or to you becoming a permanent resident of the US. Then, the US government must approve the waiver. Unfortunately, medical students and Fulbright scholars are not eligible for this waiver.
Interested Government Agency
Interested Government Agency (IGA) waivers come from US government agencies such as the National Science Foundation and Veterans Affairs. These waivers are for students who are working for or are of interest to a federal agency. The agency requests the waiver on your behalf, but you can ask them to do it.
Persecution
A persecution waiver is for people who would be persecuted based on their race, religion, or political opinion if they returned to their home country. This is slightly different from asylum which includes more protected classes in its eligibility. To qualify for a persecution waiver, you must be able to prove that you will be personally harmed if you return to your home country.
Exceptional hardship to a US citizen or LPR spouse/child
To qualify for an exceptional hardship waiver, you must have a spouse and/or child that is a US citizen or permanent resident. If one or more of these family members would experience exceptional hardship while you were in your home country or if they traveled with you, you may be eligible. Exceptional hardship is determined by US Citizenship and Immigration Services (USCIS) and includes the following factors:
- Economic hardship
- Physical hardship
- Emotional hardship
- Loss of educational opportunities
- Loss of health care opportunities
Conrad 30
This waiver is specifically for J-1 visa holders who did medical training in the US and have been offered full-time employment as a physician or other health care professional. You must commit to working for that employer for at least three years. Generally, these waivers are for physicians that work in an area with a shortage of qualified doctors. Each state can give out up to 30 Conrad 30 waivers each year, and some states have higher demand than others. You apply directly through the state where you will be employed.
Applying for a J-1 waiver
International students often ask how long it will take to get a J-1 waiver. The exact timing depends on the type of waiver and other factors, but processing time is currently six months for no objection waivers and up to three years for certain IGA waivers.
Explore your J-1 waiver options with Fragomen
You do not have to navigate through the confusing immigration system on your own. Fragomen can advise you on the best visa and waiver options for you and keep you updated on your J-1 waiver status. They even help with immigration documents and compliance to streamline your immigration to the US. Subscribe to Fragomen’s blog to learn more from these immigration experts.
The contents of this post are intended for informational purposes only and do not constitute legal advice.
